Alternative verdicts

A jury may find a defendant guilty of an alternative offence not on the indictment where, in accordance with section 6(3) of the Criminal Law Act 1967:

the defendant is tried on indictment for any offence except treason or murder;

the jury find him not guilty of the offence charged in the indictment;

the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the Crown Court

A summary only offence (including one to which section 40 applies) may fall within this definition and be sentenced by the Crown Court. The court is restricted to the powers of sentencing of the magistrates court.

Although charges of wounding, assault occasioning actual bodily harm and racially aggravated assault occasioning actual bodily harm and racially aggravated common assault would be the most obvious that might lead to consideration of an alternative verdict of common assault, it is also important to consider cases involving sexual offences and harassment with violence.

It is not necessary to have a separate count on the indictment (section 40) for a low value criminal damage that would normally be tried summarily. (R v Fennell (Peter) [2000] WL 544205, 2 Cr. App. R. 318)

founded on the same facts or evidence as a count charging an indictable offence (an indictable-only or either-way offence); or

part of a series of offences of the same or similar character as an indictable offence which is also charged; and

the facts or evidence relating to the summary offence were disclosed in the magistrates committal papers or the prosecution papers served in respect of a person sent for trial under s51.

An offence cannot be added to the indictment under section 40 if the case was transferred to the Crown Court under section 53 Criminal Justice Act 1991 (child witness transfers). There must have been a committal for trial or a sending (T and K [2001] 1 Cr.App.R446; [2001] Crim.LR 298 Sub nom T and C).

A summary offence cannot be added as a count under section 40 if it is related only to another summary offence included under section 40. For example, an offence of driving while disqualified cannot be added to an indictment if the only link is with the summary offence of taking a motor vehicle without consent. (R v Callaghan (1992) 94 Cr. App.R.226) Procedure

Charges to be added to the draft indictment under section 40 should be:

prepared as counts on the indictment;

clearly marked that they are not subject to committal;

and incorporated and served with the committal package on the defence and court.

It may not always be desirable to include on the indictment an offence to which section 40 of the 1988 Act applies. Such an approach can induce a jury to convict of the lesser offence when the proper outcome might be conviction of the more serious offence, or acquittal. It may be more appropriate position that the trial judge be left to direct the jury accordingly when summing up.

Disposal

If the defendant is convicted of a count added to the indictment under section 40, the powers of punishment of the Crown Court are limited to those that would have been available to the magistrates court for that offence (section 40(2)).

Sections 41 and 51

Scope

Magistrates can commit or send certain summary offences (punishable with imprisonment or disqualification) to the Crown Court where a defendant is:

committed for trial on an either-way offence (s41);

sent for trial on an indictable-only offence (s51)

The summary only offence must arise out of circumstances which appear to the court to be the same as or connected with those giving rise to one of the either way or indictable only offences being committed or sent for trial.

The purpose of the provisions is to allow a defendant convicted in the Crown Court to plead guilty and be sentenced for related summary matters.

Procedure

The reviewing lawyer must prepare a schedule listing the summary offences to be committed to the Crown Court under section 41 or sent under section 51.

The summary offences will then be adjourned without a date in the magistrates court to await the outcome of proceedings in the Crown Court.

The committal papers or evidence served under section 51 need not contain evidence relating to the summary offence.

The decision of the magistrates court to commit a summary offence under section 41 is not subject to appeal or liable to be questioned in any court (section 41(3)).

Disposal

The Crown Court cannot deal with a summary only offence under sections 41 or 51 if the defendant:

pleads not guilty to it; or

is acquitted on all related indictable only or either way counts on the indictment.

There is no power in those circumstances for the Crown Court to dismiss the charges. They can be dealt with only by the magistrates' court.

There is no power for the Crown Court to remit such a summary only offence back to the magistrates court. There is no power to retain the defendant in custody or on bail on a summary offence pending its re-listing.

If it is in the public interest to continue the prosecution must ask the magistrates court to re-list the summary only offence. Attendance can be enforced, if necessary, by asking for a warrant if the defendant fails to respond to a court notice requiring his/her attendance.

The prosecution must otherwise discontinue the summary only offences as the Crown Court has no power to dismiss them.

Appeals

If the Court of Appeal sets aside a conviction for an indictable offence, the conviction for any related summary offence is automatically set aside (section 41(11) and Schedule 3 paragraph 6(9) of the 1998 Act).

This would appear to be so, even if another indictable offence linked to the same summary offence of which the defendant was convicted has not been set aside on appeal.

The Court of Appeal may direct that no further proceedings be taken in respect of the summary charge.